House holds public hearing on emergency powers reform (HB 1029)

Feb 8, 2021

With the February 15 policy cutoff fast approaching, it was looking like the legislature was not going to hold a public hearing on any of the numerous emergency powers reform bills introduced this session. Thankfully the House State Government & Tribal Relations Committee did allow the public to comment on one of the bills, HB 1029 on February 8. Here was my testimony to the committee (54:58):

Also testifying was Nick Murray, the author of a new national study ranking the balance of power between the executive and legislative branches in each state concerning emergency orders. Murray said in his testimony (1:17:35):

“Maine Policy recently released a 50-state scorecard of emergency executive powers, focusing on the process by which emergencies are declared, extended, and terminated in each states’ statute.

In our rubric, Washington’s emergency law scored among the 10 worst states because the governor is the sole judge of whether an emergency exists, and whether they may invoke additional executive power.

Let me be clear, this project is not a review of how each individual governor has exercised their emergency powers. It is an examination of the balance between each legislature and their executive.

While we support this bill in its entirety, I would like to focus on one aspect that should be the foundation of any emergency powers reform: requiring the governor to confer with the legislature in order to continue an emergency declaration.

By outlining a consistent process for determining the extent of an emergency, the legislature can remove politics from the equation and guarantee the people an equal seat at the table. That is to say, no matter the governor or the political makeup of the legislature, the process should be the same.

The constitutional principles of separation of powers and co-equal branches of government are too valuable to be cast aside, even in an emergency.”

The need for a legislative check and balance on emergency powers has been illustrated by recent state editorials:

  • “That the governor has had so much power for nearly a year is a fundamental problem in our system of checks and balances. No one person should have that much control for so long. Legislators need to do their duty and regain their place in the process.” -  Tri-City Herald
  • “The Legislature now has a chance to balance the scales, at least somewhat. For the next three months, Washington’s 49 senators and 98 representatives can reassert their status as a co-equal branch of government, no longer sidelined by a governor who wouldn’t call a special session as the public-health crisis dragged on last year. They owe it to voters and the constitution to uphold the separation of powers. Both chambers are controlled by Inslee’s fellow Democrats, however, so it’s unclear how far they’re willing to go — and how much backbone they’re willing to show.” – Tacoma News Tribune

It is unclear what, if any, additional action the legislature plans to take on HB 1029 or the other bills (like the bipartisan HB 1020/SB 5039). Below are the written comments I provided the committee and bill sponsors.

WPC Written Testimony on HB 1029

Despite repeated bipartisan calls from lawmakers, the Governor refused to call a special session in 2020 to respond to the COVID-19 emergency. In contrast, Democratic Governors in Oregon, California, Nevada and Colorado (the members of the Western States COVID pact with Washington) all called special sessions in 2020 to allow lawmakers to respond to the emergency.

It makes sense to provide the Governor the ability to respond swiftly to an emergency for a limited period of time. Nearly a year of power to set state policies without the involvement of the people’s representatives, however, is not the way our government is supposed to work. By freezing out lawmakers, the Governor solely made decisions relating to a state emergency for nearly 10 months without the involvement of the legislative branch of government.

In contrast, other states give the legislature more oversight over emergency actions taken by the executive branch. For example, in Wisconsin: “A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature.”

Going a step further, Minnesota requires its Governor to call a special session if a “peace-time” emergency lasts longer than 30 days so lawmakers can respond.

According to a new national study, Washington’s ranks among the bottom of states when it comes providing legislative oversight of executive emergency actions. The study found: “Vermont, Washington, Ohio and Hawaii are among the worst-ranking states because they bestow on their governors the sole authority to determine when and where an emergency exists, and when an emergency ceases to exist.”   

Had the legislature been allowed to meet in response to this ongoing emergency it is possible lawmakers may have enacted the exact policies the Governor has imposed. This would have occurred, however, with the input of our 147 legislators from across the state following a public process, allowing the perfection of policies through a collaborative weighing of all the options, alternatives and tradeoffs.

One person behind closed doors should not have indefinite power to make decisions affecting every aspect of our lives, especially emergency orders that caused deep emotional pain, soaring unemployment, cut family incomes and closed tens of thousands of businesses, many permanently.

This is precisely why the people’s legislative branch of government exists - to deliberate and provide guidance to the executive branch on what policies should be in place and how to implement them.

The need for you to act on emergency powers reform is best summarized by this comment from Rep. Daymon Ely, D-Albuquerque, describing the efforts to provide a legislative check in New Mexico:

“It has nothing to do with whether the governor has done an excellent job or not [with the pandemic]. It has to do with whether the Legislature should have a role.”

Whether 14, 30, 45 or 60 days, at some point the executive branch should be required to receive permission from the people’s legislative branch to continue implementing far-reaching policies under an emergency order.

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